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Opinion
Part 5 Relevance of the "Children's
Evidence"
Complaints to the remaining convictions
5.1 Assuming the claimed
shortcomings in interviewing techniques and in the consideration given
to possible contamination were established, that would have little final
significance unless they were likely to have had a substantial and not merely
technical or peripheral bearing on the proof of the charges of which the
Petitioner stands convicted.
This question calls first for the consideration whether there was any other
basis for the convictions than the children's evidence, and secondly an
examination of the extent to which the different complainants were subjected
to inappropriate interviewing or contaminating communications.
5.2 The Significance of the Children's Evidence
Though
medical evidence was given in respect of two complainants, it was of minimal
probative significance and may be put to one side.
However the Crown did call in aid two other factors as supporting the
testimony of the children. Both appear to have gained some support from the
Judge, and later from the Court of Appeal, and at least in part to have
underlaid their express endorsements of the verdicts reached.
The first arose from the evidence of several fellow workers at the creche
that the Petitioner had discussed with them unusual sexual practices of a
similar nature to some of those the children alleged he had committed. In the
course of his evidence the Petitioner, while contesting some details of the
discussions reported, did accept that conversations of that general kind had
occurred He said that his comments on those occasions had been made "for
shock purposes If I could get a bite I would aim to get a bite, which I
invariably got."
The Judge directed the jury that this evidence should not be used to point to
a propensity on the part of the Petitioner but that it might show a
"unique or unusual connection between the allegations between some of
the children and the accused. . . . . . The Crown suggests to you that it
would have been an amazing coincidence for the children to have complained
about such practices unless what they were saying was true."
There is force in that argument. However, there is now evidence that there
was at the time available to the Christchurch support group an American
pamphlet on Ritual Child Abuse
which listed a number of extraordinary events said to be indicia of such
malpractice. Numbers of the events listed (as e.g. burying children in
coffins, hanging them up in cages, injecting them with needles, defecation or
urination upon the children and forcing them to ingest human waste,
perpetrators wearing black robes and engaging in photography of abuse, and
children going through marriage ceremonies) appear among the allegations made
by the children. If the question is "Where did the allegations
originate?" arguments based on coincidence point as strongly to the
ritual abuse literature as to the Petitioner.
The second matter was the argument that it was unlikely that the children's
explicit knowledge of sexual matters could have come otherwise than from
experience of the abuse they were alleging. This had some support from Dr
Zelas. When giving testimony under s23G she advised in respect of each of the
complainants that he or she exhibited knowledge of a sexual nature which was
inappropriate to the child's age, an example used more than once being
knowledge of oral sex. There is both in the transcripts and the documents
filed by the Petitioner evidence of explicit discussion of sexual matters
during the investigation between parents and children. Also among the
documents submitted is evidence of the presence of anatomically correct dolls
at the creche and of one young girl, not a complainant against the
Petitioner, disclosing a knowledge of oral sex.
None of the material noted above negates the arguments seen at trial and on
the appeal as supporting the children's evidence. However it does in my view
both reduce their cogency and at the same time reinstate the assessment of
the reliability of the children's evidence as the critical issue.
5.3 Extent to Which Individual Complainants were Affected by Interviewing
Technique and Contamination Factors
An
examination of the record indicates that some complainants are more likely to
have been affected than others.
Thus, considering first the case of the complainant G –
·
In terms of interview technique he was interviewed five times, there was
repetitive questioning, often following an initial negative answer, there was
repeated use of anatomically correct dolls, there was no attempt to
"probe gently into inconsistencies", all those matters being
contrary to the UK 1992 guidelines, or the 1996 NZ guidelines, or both
and no attempt to check the source or reliability of his increasingly bizarre
allegations
·
In terms of the likelihood of contamination, it is
now known that his mother disregarded requests that she avoid direct
discussion of possible abuse with her son and did discuss such matters with
him frequently, ("once or twice a week,") and also exchanged
information about the developing investigation with other mothers.
·
In terms of other allegations made by G which were not put before the jury,
the videotapes of the third and fifth interviews, which were not played,
expanded both the numbers of persons said to be involved in the abuse and the
places where it was said to have occurred The last tape
named for the first time two workers at the creche, neither of whom was at
any stage the subject of a charge, as the principal offenders in a large
group which thrust needles up his penis until it bled and then repeatedly
pushed burning paper "up (his) bum"
G's
credibility was considered by the Judge for the purposes of the s347
application by three of the female staff in relation to a charge in which
they and the Petitioner were jointly charged with sexual abuse. It was only
in his fourth interview that G claimed the women had been present at the
relevant time At p8 of Oral Ruling 3 it was noted that –
"It
is common ground that child G was spoken to at length and in detail by his
mother about the abuse; that he was interviewed on a number of occasions, at
least 5; that he had been subject to other pressures such as his parents'
separation, that he has suffered from various mental health problems; and
that he had received some therapy during and following the evidential
interviews."
The first
of three reasons given for granting the application was that –
"the
evidence against them is of insufficient weight to justify their trial I have
already indicated the three aspects of the evidence which, even if the
witness is truthful, affect the weight to a significant degree In my opinion
a verdict of guilty would be unsafe because there is insufficient evidence
upon which a jury could properly reach a verdict of guilty."
Had the
Judge had the additional material now available it may well have been that he
would also have taken away from the jury those charges against the Petitioner
which relied on G's evidence.
A similar exercise directed at the evidence of complainant F shows multiple
causes for concern, less grave than in the case of G, but still substantial
She had three interviews, which included not merely persistent and repetitive
direct questions but also grossly leading questions. There is evidence of
repeated discussions with her mother, though less frequent than in the case
of G Her second interview, which was not played to the jury, contained
allegations that serious offences were committed on other complainants which
were not recalled by those complainants.
At the opposite end of the spectrum, and standing rather apart from the
others, complainant B was only interviewed once, sensible steps were taken by
her parents to reduce the likelihood of contamination, and there were no
other allegations by her than that of the relatively minor indecency for
which the Petitioner was convicted, his pushing his hand into her crotch area
over her clothes.
The type of enquiry just described suggests, save possibly in the case of the
single conviction relating to B, that if the Children's Evidence complaints
are made out they will be of more than peripheral significance.
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